Federal Court Strikes Idaho’s 20-Week Abortion Ban

A sweeping decision hands reproductive rights activists one of their strongest victories yet.

The criminal charge against McCormack was dismissed for lack of evidence, but the judge left open the possibility that prosecutors could re-file should they find more evidence. Terra Nova Fondation / flickr

Late Wednesday, Judge B. Lynn Winmill of the United States District Court for the District of Idaho issued an expansive ruling striking a series of abortion restrictions, including Idaho’s law banning abortions after 20 weeks of pregnancy and a law that makes it a felony for anyone other than a doctor to perform an abortion. The decision is the latest in a series of cases that are set to redefine the battle over choice in the coming years.

The ruling is in the case of Jennie Lynn McCormack, whose name has become synonymous with the push for criminalizing abortions and arresting women for having them. Police charged McCormack with a felony under Idaho’s “self-abortion” statute—which makes it a crime for anyone other than a doctor to perform an abortion—after they received a third-party tip and discovered a discarded fetus at McCormack’s residence. McCormack admitted she had obtained abortion-inducing drugs online and administered them because she couldn’t afford to go to a doctor for an abortion, nor could she afford to care for another child. McCormack’s prosecution was the first of its kind under the law and was seen by many as a test case in criminalizing abortions.

The criminal charge against McCormack was dismissed for lack of evidence, but the judge left open the possibility that prosecutors could re-file should they find more evidence. In response, McCormack filed a civil suit challenging the constitutionality of the ban and other Idaho restrictions. The case has been winding through the legal system in various forms for at least a year, with a lower court granting an injunction to block the bill and the Ninth Circuit Court of Appeals affirming that injunction in a decision that forcefully pushed back against a slew of anti-choice decisions from the federal courts.

Wednesday’s ruling came after the state tried to dismiss McCormack’s remaining civil claims, arguing they are moot because prosecutors have decided they will not re-file charges against McCormack. Essentially, the state argued, now that they’ve promised not to prosecute McCormack, the entire disagreement about the merits of Idaho’s abortion restrictions should just be brushed aside.

Thankfully, the lower court disagreed that McCormack’s claims were moot, holding that so long as the law is on the books, prosecutors remain able to criminally charge women for failing to follow the strict dictates of the law. In fact, the court detailed, the evidence suggests the opposite. “[Prosecutor Mark] Hiedeman never repudiated the statute as unconstitutional, and he did not cease McCormack’s prosecution because he believed the prosecution was unlawful,”Judge Winmill wrote. “Instead, he stopped the prosecution because it would waste his office’s resources and would not be ‘in the interests of justice.’ And he only ceased his prosecutorial efforts after he lost his Ninth Circuit appeal, which fairly leaves open the possibility that he changed course to deprive the Court of jurisdiction,” the judge continued. “Most importantly, Hiedeman’s promise not to prosecute, with nothing more, would not bind his successors. These facts do not make it ‘absolutely clear’ that the prosecution against McCormack would never recur.'”

This set the tone for the rest of the 42-page decision. In it, Winmill declares the state’s so-called fetal pain ban to be an undue burden on a woman’s right to choose an abortion, relying on language from the earlier Ninth Circuit decision that affirmed the injunction blocking parts the law. As Winmill quoted, “‘There can be no doubt,’ the Ninth Circuit explained, ‘that requiring women to explore the intricacies of state abortion statutes to ensure that they and their provider act within Idaho’s abortion statute framework, results in an ‘undue burden’ on a woman seeking an abortion of a nonviable fetus.'” He continued, “The Ninth Circuit faulted Idaho statutes for heaping ‘yet another substantial obstacle in the already overburdened path that McCormack and pregnant women like her face when deciding whether to obtain an abortion …. These obstacles, coupled with the threat of criminal prosecution based on an abortion provider’s purported failure to comply with state abortion regulations, are simply too much.”

The decision also eviscerates the Idaho legislature and the conservatives who control it, declaring there to be “compelling evidence” that those conservatives had an “improper purpose” when passing the ban. “The state may not rely on its interest in the potential life of the fetus to place a substantial obstacle to abortion before viability in women’s paths,” Winmill wrote.

Unlike other restrictions on access to abortion before viability, such as, for example, waiting periods, there is no justification that the 20-week ban is designed to assist a woman in deciding whether to terminate a pregnancy, the court held. Likewise, the ban cannot be justified under any concern for the health of the mother. “When the Idaho legislature enacted the [Pain-Capable Unborn Child Protection Act (PUCPA)], no mention was made of the health or safety of the mother. Rather, as the short title of the statute suggests—the Pain-Capable Unborn Child Protection Act—the primary purpose of the PUCPA is to protect a fetus ‘from the state at which substantial medical evidence indicates that they are capable of feeling pain.’ This language plainly indicates that the purpose of the PUCPA’s categorical ban is to protect the fetus- not the mother,” Winmill wrote. “In essence, the PUCPA embodies a legislative judgement equating viability with twenty weeks’ gestational age, which the [United States] Supreme Court expressly forbids.” As the U.S. Supreme Court explained in Planned Parenthood v. Danforth, “it is not the proper function of the legislature or the courts to place viability, which is essentially a medical concept, to a specific point in the gestation period.”

Winmill added that evidence of those improper motives appear in a statute that is so vaguely worded it allows for “arbitrary enforcement by police and prosecutors who may determine that a provider has unlawfully performed an abortion by failing to meet the undefined standard,” which is exactly what happened in the McCormack case. They also appear in the state’s “clear disregard” of controlling Supreme Court precedent and the state’s “apparent determination to define viability in a manner specifically and repeatedly condemned by the Supreme Court.”

In addition to striking the state’s 20-week ban, the decision also struck two other Idaho abortion restrictions, including one that requires first-trimester abortions to be performed by a physician in a staffed office or clinic, making most medical abortions illegal, and one that requires second-trimester abortions to be performed in a hospital, as well as a statute that criminalizes the act of self-abortion. “Historically, abortion statutes sought to protect pregnant females from third parties providing dangerous abortions,” Winmill wrote. “As a result, most states’ abortion laws traditionally criminalized the behavior of third parties to protect the health of pregnant women—they did not punish women for obtaining an abortion. By punishing women, Idaho’s abortion statute is therefore unusual.”

Like the Ninth Circuit decision before it, this decision clearly lays the case against over-zealous anti-choice legislation. There is no “proper purpose” in passing laws that serve only to ban abortions pre-viability. Also, in painstaking detail, it rejects framing pushed by anti-choice activists prioritizing the rights of a fetus, as protected by the state, over the rights of a pregnant person.

The decision comes at an important time in the battle over pre-viability abortion bans. Arizona’s 20-week ban is currently under consideration at the Ninth Circuit, while legislators in Arkansas overrode a veto by Democratic Gov. Mike Beebe to pass a 12-week “heartbeat” ban that will undoubtedly face immediate legal challenge.

Attorneys for the state of Idaho can appeal the decision. If they do, it will provide the Ninth Circuit yet another opportunity to solidify an emerging line of precedent declaring pre-viability bans unconstitutional—a risk they may not be willing to take right now.

“This ruling is a warning to other states around the country passing bans on abortion that are unconstitutional and dangerous for women,” Planned Parenthood Action Fund President Cecile Richards said in an email statement. “Voters and the courts agree that politicians should not be making personal health care decisions for women, but this decision comes just a day after Arkansas passed the most extreme abortion ban in the United States. These laws are outrageous and unconstitutional, and they will not stand.”